The Hawaiian gazette., 1887-12-13

ms Is an acllOO TO RECOVER lMO
hundred dollars for damages alleged
to have accrued to the plaintiff from
the negligence of the defendant Nc
Intyre's servant defendant Gomez,
In driving NIcIntyre's horse and
carriage along Hotel street, Homo
lulu, against the plaintiff, All You.
The Police Magistrate dismissed
the case against Mcintyre and rem
dered judgment against the defend
ant Gomez for twenty dollars.
From this decision the plaintiff
appealed to a Justice of the Supreme
Court in Chambers, and the appeal
was heard by Mr.. Justice NIeCully,
who rendered the following de-
cision
1.-The Plaintiffs complain that the
defendant Gomez, the servant of
the defendant Mcintyre, being en-
trusted TO drive the carriage of the
latter, negligently and unskillfully
drove against and injured All You,
the plaintiff, wife of All Sung CO.
plaintiff. 1t is admitted or proved
that the defendant Gomez in pur-
suance of orders drove the defend
ant MeIntyre'S son down town and
left him, and was directed to drive
back To his masters house. That
he did not take the direct route
thither, but drove along Hotel street
TO the west of NUuanu street, on his
way to see a friend of his living
near st. Louis College. BY his
direct route he should not have gone
west of Nuuanu street. He was
driving rapidly and negligently
about the distance of a block out of
his route, when he ran against the
plaintiff All You. She was injured
severely, disabling her from work
and requiring the aid of nurse.
The sole question in argument be-
fore the Court Is whether the ser
want in making this detour, on his
own business, during which the
accident occurred. was acting within
the scope of his employment.
I find cases directly applicable to
the facts in this case In Jorl vs..
Morrison 1881, g Car. and Payne
sol Parke B. held that if a ser
want driving his masters cart on
his masters business, make a de-
tour from the direct road for some
purpose Of his own. his master will
be answerable in damages for any
by his careless driving
while 50 out of his road. But
if a servant take his masters
cart without leave at a time when
he Is not wanted for the purpose of /
business, and drives it about solely
for his own purposes, the master
Will not be anSwerable. Following
the case in 1899, in 9th Car. and /
Payne COZ Sieath V. Wilson, before 1
J., a servant drove negli- /.
gently against the plaintiff while 4
out of his way on an errand .
Of his own in the course of driving
for his master, the master was held /
because he has put it in 1
the servants power TO miSmanage 1
the carriage by entrusting him with /
it. In the decisions Of the Supreme I
Court Of the United States, Vol. 20,
p. 294. PhiIa- and Reading R. R. (
Co. vs. Derby, 1852, the Colrt say /
The case Of Sleath V. Wilson. above /
cited, states the law in ~;Iyl cases +
and correctly. This Court /.
says we find no case which asserts 4
the doctrine that 4 master IS not 4
liable for the acts of 4 servant in his 4
when the particular 1
act causing the injury was done in /
disregard of the general orders or /
special command of the master.
Such qualification Of the maxim I
superior would in a mea- +
sure nullify it. This Court also 4
cites the language of Mr.. Justice /
ErSkine thus . Whenever the mas
Ter has entrusted the servant with I
the control Of the carriage, it Is no +
answer that the servant acted i'm 4
properly in the management of it.
If it were, II might be c0ntended {
that if master directs his servant .
to drive slowly, and the servant
drives fast and through his negli-
genee occasions an injury, the mas
ter viii not be liable.
But that Is not the law; the mas
ter in such case viii be liable and
the ground Is that he has put It in I
the servants power to mismauage
the carriage by intrusting him
with it.
The same doctrine with the same
limitation is set forth in smiths
Master and Servant, supported by
he cases here cited and many
0therS. The law is uniform and
clear; but when 1 come to the mat
ter Of judgment 1 find difficulty.
not touched on by either counsel. in
the joinder Of the master and the
servant, as defendants 1t viii be